By Matthew Behrens
December 17, 2010 – A week ago, three interconnected Federal Court decisions upholding the regime of secret hearings and judicially sanctioned rendition to torture were issued in Ottawa. On the eve of International Human Rights Day, the 8th anniversary of his arrest on a secret trial certificate, Algerian refugee Mohamed Harkat and his wife broke down in tears as they received the news.
For the past eight years, Harkat has been subject to a “security certificate,” a measure by which individuals can be detained, held indefinitely without charge based on secret allegations neither they nor their lawyers can contest, and ultimately be deported, despite the risk of torture. The standard of proof in such hearings (which only apply to refugees and immigrants) is the lowest of any court in Canada, and a judge may accept as evidence anything not normally admissible in a court of law.
Despite a unanimous 2007 Supreme Court ruling that found the secret trials process was unconstitutional, Parliament in 2008 simply rubberstamped new legislation that very much mirrored the old. Despite a limited (and many claimed a sham) process of consultation with Parliamentarians, during which leading legal experts, academics, and human rights organizations showed in stark terms how the new law would not withstand a Charter challenge, the bill sailed through Parliament and, in 2008, resulted in new certificates being issued against Harkat and four other Muslim men (two of which have since been quashed).
In dismissing Harkat’s Charter challenge to the new regime, Federal Court Judge Simon Noel writes “Parliament has designed a security certificate regime that provides a named person such as the Applicant, Mr. Harkat, with a fair hearing.” Yet Noel fails to reconcile this belief with the finding of the Supreme Court that “a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case."
At a packed December 10 press conference, Harkat lawyer Norm Boxall took reporters through a dozen of Noel’s inflammatory findings and noted that in each and every case, there was “absolutely no evidence” presented in public to support them, despite the legal team’s persistent requests for disclosure. Summing up the frustration that lies at the heart of the secret trial detainees’ struggle, Boxall asked, “What can an innocent person do other than to say ‘I didn’t do it,’ and then to be told that they’re a liar based on material they can’t face?”
While his lawyers have promised to pursue every legal angle they can (limited as they are under the legislation), Harkat now faces the threat of deportation to torture in Algeria. He is currently under bail conditions that require him to wear a GPS tracking bracelet, to report once a week to an immigration office, and to seek permission should he wish to travel outside Ottawa. Compared to the brutal house arrest conditions that he faced when first transferred out of prison in 2006, his current relatively easier conditions now, though certainly frustrating, serve as an ironic counterpoint to Mr. Noel’s finding that Harkat suddenly poses a “danger” to Canadian security.
That finding is based on allegations that, among other things, Harkat allegedly operated a Peshawar guesthouse that “may be linked to Ibn Khattab” (a leader in the fight against Soviet occupation in Afghanistan who was later killed in Chechnya). Harkat denies this. Yet even if it were true, in a 2009 decision quashing the security certificate against Hassan Almrei, Federal Court Judge Richard Mosley found that the Almrei’s admitted “association with Khattab does not, in my opinion, support a finding that he is a danger to the security of Canada.” The fact that Noel would contradict his fellow judge in such a manner is, according to lawyer Norm Boxall, “at the very least embarrassing.”
In addition, Noel curiously takes on geography Sarah-Palin style, arguing that Mr. Harkat’s statement that while in Pakistan he did not visit Afghanistan because it was a long 4.5 hour trip was “exaggerated” because when the judge looked at a map, it did not seem that far. Noel concludes, based on “closed evidence” that Harkat was in fact in Afghanistan (certainly no crime), and backs up his conclusion by saying this was information that was “tested” by the special advocates, as if their presence in the secret room somehow makes it true.
Such broad, unsubstantiated conclusions are rife throughout Noel’s decisions. Much is based on guilt by alleged association, regardless of the degrees of separation. Noel agrees with the unsubstantiated CSIS claim that Harkat may be a member of the “Bin Laden network” (a concept whose existence is thoroughly rejected by top national security experts) because this “network” uses false passports. When Harkat arrived in Canada he, like most refugees, also had a false Saudi passport (which, we are also informed, was the “passport of choice for Muslim extremists entering Canada prior to 2002.”)
Noel also believes Harkat facilitated the entry to Canada of an individual who arrived with a “shopping list of munitions and weapons…and instructional documents on how to kill.” This does not sound like anything out of the ordinary for Ottawa, where weapons buyers from the likes of Lockheed Martin, L-3 Communications and other manufacturers of weapons of mass destruction regularly gather for trade shows that feature “lowest cost per kill” machinery. However, Noel says the fact that this individual also had in his possession what appears to have been excerpts from an Al-Qaeda instruction manual makes this all the more sinister. Harkat denied knowing and assisting this individual, yet Noel nevertheless goes on at length over several pages, reproducing the contents of the shopping list and manual. It’s a fairly blunt guilt-by-association maneuver that is all the more damaging to Harkat because has has no way of responding: the only information that allegedly links the two men was heard in secret. Where did this come from? Who was the informant, and how well-paid? Was the informant truthful?
Many of the allegations against Harkat appear to arise from summaries of alleged phone calls that took place a dozen years ago. Noel says that the public summaries “do not specifically mention where they originate from. This was deliberate.” Harkat argued they should not be admitted as evidence, since the original recordings have been destroyed, and all that remain are skeletal summaries of notes. Harkat is unable to determine which voices were on the phone (if in fact those calls did exist); who did the translation, and whether that translation was accurate; why his phone was apparently being intercepted; who actually wrote the summaries.
The summaries themselves are boilerplate CSIS, and read very much like those in related cases in which certain keywords are inserted and repeated to make it sound like Harkat is being deceptive or hiding something. Hence, we learn that Harkat “revealed” he would register for an ESL course, as if this were a decision bathed in mystery.
Noel comes to the startling conclusion that although Harkat disagrees with the existence and summarized content of specific calls, the fact that Harkat does allow that a couple of summaries of conversations with family members appear to ring true “can only demonstrate that the summaries of the conversations produced by CSIS are more reliable than not.” Noel then goes on to quote “John,” a CSIS witness who did concede “that errors can occur, but CSIS followed various methods to minimize them.”
Harkat denies making numerous of the calls. The Court, Noel says, could only accept Harkat’s denials “if the Ministers had made up this evidence in order to support the allegations.” He says there is no such evidence, but how would he know, and can he trust the word of CSIS, the RCMP, and other “intelligence” agencies when they normally come up with false allegations (whether it be the non-existent weapons of mass destruction in Iraq or the commonly used “imminent threat” label wrongly affixed to numerous Canadians who were tortured overseas as a result)?
Indeed, Noel, who waxes on that “For the Court, honesty, truthfulness and transparency are essential to establish credibility,” knows full well that CSIS has failed on all three counts both before other judges as well as himself. In the Almrei case, his fellow judge Richard Mosley found CSIS agents "were in breach of their duty of candour to the Court," noting that the allegations against Hassan Almrei were assembled “with information that could only be construed as unfavourable to Almrei without any serious attempt to include information to the contrary, or to update their assessment." He also found that " certain of the human sources in this case had motives to concoct stories that cast Almrei in a negative light."
It is a matter of public record that Harkat’s case, overseen by Noel, has been burdened by numerous instances of CSIS malfeasance. One of the potential informers, it was learned last year, was carrying on an affair with a CSIS officer investigating the case. CSIS also withheld information indicating an informer had failed a polygraph test. Under such instances, Noel, in a previous decision, wrote “it was found to be necessary to repair the damage done to the administration of justice and to re-establish a climate of trust and confidence in this proceeding.”
Despite such clear efforts by CSIS to manipulate the court process, Noel saves all his rancour for Harkat, and not the scandal plagued spy agency which was also found last month to have brazenly defied for two years a court order to stop listening in on solicitor-client calls in a separate security certificate case.
Much of Noel’s rulings carry on in such a manner, at times reading in a contradictory, sloppy, and incredulous fashion that borders on a personal attack against Mr. Harkat. On the one hand, Noel slams Harkat for sounding as if he had “memorized a story,” a fabrication he allegedly took great pains to prepare, yet on the other, he criticizes him for making mistakes in recalling certain dates (condemning him for the fact that as a non-English speaker, Harkat wrote something in his 1995 refugee application that did not exactly match his 2010 testimony, being off by a couple of months in relation to something that happened in 1989). To Noel, if Harkat is consistent, it is a story; if he is inconsistent, he is a liar. In such a manner Harkat was deemed to be untruthful as opposed to merely human.
“Mr. Harkat is an educated and knowledgeable person. It is surprising that he did not know about the Islamic platform of the [Algerian political party] FIS,” Noel writes, yet one could say the same about most NDP members who are clueless about that party’s economic platform. But this among other findings is used to attack Harkat’s credibility.
Noel’s cultural blinders are on as well when he dismisses the notion that Harkat could have gotten a relief agency warehouse position without providing references. Noel prefers the testimony of Martin Rudner, a right-wing terror industry spokesman who has never been to Saudi Arabia, over that of Sulaimen A. Khan (who works at Ottawa’s Islam Care Centre and was a founder of the charity Human Concern International), who is quite familiar with hiring practices in Saudi Arabia. Noel concludes that were this an ordinary job, he perhaps could buy the explanation of not needing references, but since Harkat’s position would be managerial, he simply refuses to go there (notably, Noel assigns far too much importance to the position, making it sound like the CEO of a multinational when in fact Harkat would be supervising three employees in a Peshawar warehouse).
In addition, Noel says the fact that he believes Harkat had a relationship with Ahmed Said Khadr (the Canadian aid worker accused of being a financier for bin Laden) makes him a threat. Harkat says he once spent four hours in the back seat of a van on the way from Ottawa to Toronto with Khadr in the front, and the two exchanged few words. Noel finds this implausible. Noel also notes that the expert above, Mr. Khan, admitted that he himself, as an aid worker, was “very close” to Khadr. And yet Noel does not ask why CSIS has not placed Mr. Khan, or the thousands of other Canadians who would have known Mr. Khadr, under surveillance or subject them to a security certificate.
Ironically, the rulings take on an almost desperate tone to justify and salvage the secret trial system. The reasons also appear to reflect Noel’s own feelings about Harkat, who he alleges is not credible and who has, in the judge’s words, “surrounded himself in layers of clouds in which he does not let any light come through.” Gratuitous comments that open the door to slamming Harkat include musings like “Many lawyers were involved in this proceeding, all paid from the public purse.” We do not know how many informants were paid from the public purse, or how much, though we do know some of it was taken out in trade, given the sexual relationship of one of the CSIS agents.
All three decisions also take on a seriously disturbing tone, chastising Harkat and his lawyers for their repeated argument that the process remains fundamentally flawed and unfair. Perhaps because the process, designed to be “informal” and “expeditious” has ground on for 8 years, Noel feels Mr. Harkat and his fellow detainees have had more than enough shots at Canadian justice. Noel’s writing style is reminiscent of a white liberal in 1960s America asking why African Americans keep pushing for more when they allegedly have so much (a common enough complaint that was responded to by Martin Luther King’s “Letter from a Birmingham Jail.”)
In the meantime, the decisions drown in self-justification. On the one hand, Noel praises both the system and himself for not relying on information gleaned from torture. Noting the evidence “does not raise issues related to torture,” in the very next sentence Noel says “Whenever a concern was raised in relation to this matter, the Ministers’ counsel immediately agreed to have that information withdrawn.” This is problematic on a number of levels. This seems to imply that the Ministers were putting in information that may well have been gleaned from torture, despite their knowledge that the security certificate legislation expressly forbids it. It also calls to mind the Security Intelligence Review Committee finding that CSIS has no way of determining whether its information does come from torture. CSIS officials are on record as stating they do receive information from torture, and will use that information if it can be “corroborated.”
Despite this, Noel dedicates a fair amount of space in his reasonableness decision to one of the more tortured high profile figures of the past decade, Abu Zubaydah (allegations against whom were pretty much withdrawn earliuer this year by the U.S. Justice Dept. after years of alleging he was a terrorist kingpin). Nonetheless, Noel insists on finding an association between him and Harkat, concluding that two of them must have met since they apparently were in Peshawar at the same time (a city of over 1 million people). In coming to this conclusion, “the Court did not rely on any information relating directly or indirectly to torture,” Noel reassures us. How would he know? How would CSIS know?
In his ruling on constitutional issues, Noel does acknowledge that Harkat’s charter rights have been violated by the current process, stating that Harkat “is deprived of his liberty and eventually, depending on future decisions, of his right to the security of the person as well.”
That being said, Noel reassures us that all is well and, in comments that echo his earlier 2005 finding that secret hearings were constitutional—a decision overturned by the Supreme Court – he sets out again to claim that the procedure designed to ensure disclosure “has worked well,” and that the limits imposed on Harkat’s Charter rights are “demonstrably justifiable.”
He claims that “full acsess to the bank of information in the hands of CSIS in regards to Mr. Harkat” has been provided in the secret hearings, yet we know Noel expressly withheld witnesses from the special advocates using the remarkable justification that individuals being heard in secrecy by lawyers sworn to secrecy would be at risk of losing their confidentiality.
In ultimately upholding the security certifcate regime, Noel fails the Supreme Court test that clearly stated “Security concerns cannot be used to excuse procedures that do not conform to fundamental justice." He is ultimately blinded (and perhaps cowed) by the world of the secret agents (going so far as to capitalize Intelligence throughout the decisions, as if to add to its imprimatur), and states repeatedly that “this material is highly protected and such material cannot be shared with anyone.”
It is ironic to hear such words in the Wikileaks age, when the steady stream of what used to be highly classified information has been released and no harm has come to daily life as we know it. Indeed, what we have learned from Wikileaks as well as recent Federal Court decisions and judicial inquiries into Canadian complicity in the torture of its own citizens is that national security confidentiality is always overclaimed.
All of this leaves Mr. Harkat in limbo, an extension of the frustrating 15 years process he has engaged in an effort to gain the full rights of citizenship. Understandably, he worries about the things most of us take for granted – schooling, finding employment, starting a family – and wonders whether the Kafkaesque system that Canada continues to employ will ever allow him to live a normal life.
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